Law Commons^™

Private Use As Fair Use: Is It Fair?, Frances Grodzinsky, Maria C. Bottis

School of Computer Science & Engineering Faculty Publications

The age of digital technology has introduced new complications into the issues of fair and private use of copyrighted material. In fact, the question of private use of another's work has been transformed from a side issue in intellectual property jurisprudence into the very center of intellectual property discussions about rights and privileges in a networked world. This paper will explore the nuanced difference between fair and private use as articulated in the US and the European Copyright Laws. Part One will explain the legal use and meaning of fair use and its justifications. We maintain that it is almost …

The Digital Titanic: The Sinking Of Youtube.Com In The Dmca's Safe Harbor, Trevor Cloak

Vanderbilt Law Review

In today's technologically advanced world, video-sharing Internet sites ("VSIs"), such as Grouper.com, Bolt.com, and YouTube.com, provide free, unfettered access to clips of your favorite television shows and artistic performances, from Animaniacs to ZZ Top. With movie clips viewed over 100 million times each day, YouTube is the behemoth of these sites5-a major accomplishment considering the site entered the video-sharing market in May 2005. Two friends, Steve S. Chen and Chad Hurly, created YouTube after they experienced difficulty posting a video online. Taking advantage of online blogging's popularity, the two distinguished their site by coupling quick and easy video posting with …

Here There Be Pirates: How China Is Meeting Its Ip Enforcement Obligations Under Trips, Kate Colpitts Hunter

San Diego International Law Journal

This paper will examine whether China is meeting its obligations to protect IP rights under the TRIPS agreement, an international intellectual property trade agreement China acceded to upon joining the World Trade Organization (WTO). Moreover, it will address whether China's increased IP protection in law equals increased protection in fact. Part II will describe China's legal structure, its TRIPS obligations upon joining the WTO, and China's IP laws. Part III will discuss China's enforcement of these IP laws from the perspective of developed nations and from China's own perspective. Part IV includes suggestions on how China can improve its enforcement …

Protecting Fair Use With Fogerty: Toward A New Dual Standard, John A. Fonstad

University of Michigan Journal of Law Reform

Copyright law exists to promote the progress of art and science. It achieves this by balancing limited grants of rights to authors against public access to works. However, copyright holders have upset this balance and tilted the law in their favor One cause of this phenomenon is that the benefit of public access to works is diffused throughout the entire public while the benefit of rights in works is concentrated in the copyright holder. This problem is especially prevalent in the context of litigation where copyright holders (plaintiffs) often stand to gain more through victory than copyright users (defendants). As …

Copyright And Youtube: Pirate's Playground Or Fair Use Forum?, Kurt Hunt

Michigan Telecommunications & Technology Law Review

The entertainment industry has a history of framing new technology as piracy that threatens its very existence, regardless of the potential benefits of the technology or the legal limits of copyright rights. In the case of YouTube, copyright owners' attempts to retain content control negatively impact the public's ability to discuss culture in an online world. This implicates the basic policy behind fair use: to prevent copyright law from "stifl[ing] the very creativity which that law is designed to foster." The internet has become a powerful medium for expression. It is a vital tool in today's world for sharing original …

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Vanderbilt Law Review

What to read? or watch? or listen to? These are hard questions, not because of any scarcity of expression, but rather because of its abundance. Over 100,000 books are published in the United States each year, thousands of movies and CDs are released, and the amount of textual, musical, and visual works on the internet continues to rise exponentially. Whose work can we trust? And who knows what of it will rank among the best that has been thought and said-or even provide a few moments levity?

Admittedly, a bulging bookshelf or surfeit of films prompts an existential crisis in …

An International-Comparative Perspective On Peer-To-Peer File-Sharing And Third Party Liability In Copyright Law, Guy Pessach

Vanderbilt Journal of Transnational Law

In the last decade, the phenomenon of peer-to-peer file-sharing and its various legal aspects have been dealt with extensively by legal scholarship. The purpose of this Article is to take a closer inspection of several particular legal aspects that are related to peer-to-peer file-sharing as a comparative, social, economic, and cultural phenomenon. The Article begins by providing critical comparative analysis of distinct paradigms that different legal systems have offered regarding the question of third party liability for copyright infringements that occur through peer-to-peer file-sharing platforms. The Article then presents three focal policy considerations that should serve as copyright law's compass …

The Social Costs Of Property Rights In Broadcast (And Cable) Signals, Shyamkrishna Balganesh

Faculty Scholarship

The use of property as a regulatory mechanism in the telecommunications sector is hardly novel. Since the early twentieth century, policy makers and regulators in the United States have experimented with different mechanisms for allocating private rights in the radio spectrum. In 1959, Ronald Coase proposed that the FCC auction rights in the broadcast spectrum and convert broadcast licenses into tradable commodities. However, it was not until very recently that the FCC implemented Coase's idea. At least part of the reason for the long delay in implementing this seemingly efficient mechanism lay in the public nature of broadcasting and the …

Atlantic Recording Corporation V. Xm Satellite Radio: A Brief Analysis Of The Case And Its Implications For U.S. Copyright Law, Lyle Preslar

Vanderbilt Journal of Entertainment & Technology Law

In May 2006, the Recording Industry Association of America ("RIAA"), representing the four major record labels, brought suit against XM Satellite Radio, Inc. ('XM') in the U.S. District Court for the Southern District of New York.' The plaintiffs allege that XM's introduction of its new service utilizing certain satellite radio receivers, including Pioneer's "inno" (the "inno"), dubbed "XM+MP3,"constitutes "massive wholesale infringement" of RIAA members' copyrighted sound recordings. The plaintiffs claim that XM's new service allows XM subscribers to record broadcasted songs, store them in playlist form, and replay them at the user's will, "effectively provid[ing] a digital download service." This …

Creative Reading, Jessica D. Litman

Articles

Let me begin with something that Jamie Boyle wrote ten years ago in Intellectual Property Policy Online: A Young Person's Guide:' Copyright marks the attempt to achieve for texts and other works a balance in which the assumption of the system is that widespread use is possible without copying. The relative bundles of rights of the user and the owner achieve their balance based on a set of economic and technical assumptions about the meaning of normal use. For our purposes, I would like to generalize this as something that Boyle might have written if he had not in that …

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …

Trademark Law And Status Signaling: Tattoos For The Privileged, Jeffrey L. Harrison

UF Law Faculty Publications

The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the "functional" quality of these goods. Another motivation relates to what the goods "say" about the buyer. Here, the good is a signaling device. Signaling is not new, of course, and can indicate anything from social class to political leanings.

This Essay addresses the issue of whether it should be public policy to subsidize this type of person-to-person status signaling. This …

Defending Artistry By Deleting "Dead Capital:" Sony, Grokster, And The Supreme Court's Lost Opportunity To Eradicate The "Substantial Non-Infringing Use" Doctrine, Joshua E. Carpenter

Vanderbilt Journal of Entertainment & Technology Law

The administration of copyright law manages the trade-off between the benefits derived from encouraging the creation of works and artistic protection and the cost of restricting access. Copyright law cannot work without a strong legal system that strictly reads the rights granted to those seeking the law's protection and against those seeking to find creative ways to avert the law's protections. Ironically, certain technology providers want protection against others' infringement on their technological creations, but they accept that their businesses base themselves on eroding the value of another's hard work and innovation. Sony allows technology companies to hide behind the …

Compulsory Licensing Vs. Private Negotiations In Peer-To-Peer File Sharing, Michael Botein, Edward Samuels

Articles & Chapters

No abstract provided.

Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to …

Lawful Personal Use, Jessica D. Litman

Articles

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.